Train-terror case defence likely entrapment, say experts

By Staff Torstar News Service

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Chris Young/The Canadian Press
Chiheb Esseghaier, accused of plotting a terror attack on rail target, is led off a plane by an RCMP officer at Buttonville Airport, just north of Toronto, on Tuesday April 23, 2013.

Two undercover agents. Covert searches of homes, businesses and vehicles. Authorization to monitor phones and banking records. Even renting the basement apartment next-door to one suspect.

Investigators went to great lengths to probe what they believe was an Al Qaeda-sponsored terrorist plot to derail a New York-Toronto passenger train, according to newly released documents.

The scope of the investigation — and the long leash granted by a judge, who approved requests for intrusive investigative actions — suggests RCMP have strong evidence against accused terrorists Chiheb Esseghaier and Raed Jaser, and are leaving no room for error, according to some terrorism experts.

But the revelation that two undercover agents — an RCMP constable and an FBI officer — were involved and “very effective,” according to documents, means prosecution will likely face a significant hurdle when the case goes to trial.

“You’ll have entrapment claims made here, without any question,” said Daveed Gartenstein-Ross, a counterterrorism expert with the Foundation for Defense of Democracies.

Jaser, a 36-year-old Palestinian living in Toronto, and Esseghaier, a 31-year-old native Tunisian and PhD student living in Montreal, were arrested last April 22 on charges of conspiring to derail a Toronto-bound passenger train.

Nine months later, new details about the plot are emerging from partially unsealed documents containing the information police used to obtain warrants. Much of the documents remain under publication ban, but portions have been made public following a request by Torstar News Service and other media outlets.

The allegations have not been tested in court.

John Norris, Jaser’s lawyer, said commenting would not be appropriate with court proceedings ongoing, but stated his client denies the allegations “categorically.”

Esseghaier, who does not have a lawyer, did not fight public access to the police documents.

Among the revelations in the documents is a trip the men took on September 17, 2012: the pair went to Jordan Station, a village near Niagara, Ont., where an Amtrak train from New York passes daily over a bridge on its way to Toronto.

“A great deal of time has been spent planning the train derailment,” wrote RCMP Const. Patrick Flannery in one of the applications for warrants.

Documents also state Esseghaier travelled to Iran before his arrest; at the time of arrest, RCMP said the pair received guidance from Al Qaeda elements in that country.

The warrants show police were approved to search for “maps, pamphlets, brochures” and other documents on the Canadian railway system. They were granted permission to probe computers, hard drives and cellphones, and more. Rogers, Wind Mobile, and Telus were later forced to hand over highly detailed call records.

Secrecy throughout the investigation, dubbed Project Smooth, was paramount. If Jaser and Esseghaier learned of the plans, “they may use it as an opportunity to attack those persons involved in the execution of this,” wrote Flannery.

Among the measures taken to hide their tracks was approval to mark evidence with ink visible “only under ultraviolet light, in order to identify them later.” If necessary, police could also stage a break-in by removing electronic devices or cash, or even fake a car theft if a vehicle moved to be searched could not be returned to the original spot.

Any weapons found along the way were to be made inoperable or replaced with a non-functioning substitute.

Gartenstein-Ross said the fact that police were meticulous in their attempt to get warrants for every action on a number of occasions indicates they were being particularly diligent.

“It suggests that they wanted to make sure that there would be no allegation of impropriety later on,” he said.

In October, 2012, RCMP covertly entered Esseghaier’s Montreal apartment, where investigators made “a partial image of a hard drive located in the residence.”

But they also encountered difficulty entering both Jaser’s and Esseghaier’s homes. Jaser’s residence posed challenges because his “wife remains in the residence for the majority of the time,” documents show. To increase opportunities to enter the home, investigators rented the basement apartment within Jaser’s building.

The warrants also reveal the RCMP held off on the arrests of Jaser and Esseghaier, so as to not compromise a parallel terror investigation in the U.S.

The two suspects’ arrests were intended to take place on April 6, when Esseghaier was flying back to Canada from New York. Federal U.S. prosecutors allege that while in the country, Esseghaier met with an undercover officer and Ahmed Abassi, a fellow Tunisian held in U.S. custody.

American officials claim that, while in New York, Esseghaier discussed another terrorist attack involving mass killing through air or water contamination.

As a “result of developments,” RCMP deemed arresting Jaser and Esseghaier on April 6 too risky, and opted to delay so as to “not to compromise the FBI investigation,” according to the documents.

“Had Esseghaier and Jaser been arrested, the identity of an FBI undercover employee would have been compromised. This same FBI undercover employee has been working on the (RCMP’s Integrated National Security Enforcement Team) investigation into Esseghaier and the FBI investigation involving Esseghaier and others in New York city.”

The involvement of an FBI official in the Canadian investigation could become a key issue in the prosecution, said Wesley Wark, a terrorism expert at the University of Ottawa.

The prosecution cannot necessarily count on evidence obtained in the parallel American investigation, nor that gathered from the FBI informant — “they may decide not to permit that for their own operational reasons,” Wark said.

“It’s always a decision for a foreign agency to decide that.”

Tom Quiggin, a court expert on both Al Qaeda terrorism and the reliability of intelligence as evidence, also has concerns about an undercover FBI agent. Compared to Canadian officials, Quiggin said, the American agency can be less cautious about ensuring undercover agents are not provoking terrorist activity.

“One of the problems that has come up repeatedly with the FBI is that they have used undercover agents in a way which would get fired out of court here instantly,” he said.

Court proceedings in the train derailment case continue later this month.